Excerpt:
indian penal code (ipc) - section 452 - house-trespass after preparation for hurt, assault or wrongful restraint -- learned counsel for the appellant sahnawaz contends that none of the appellants was arrested on the spot. none of the prosecution witnesses have identified the appellant. appellant has not been identified at any point of time. pw5, pw6 and pw10 have deposed about the incident. pw3 and pw4 have specifically identified the accused persons in the court. this witness has further identified appellant ashraf and shahnawaz in the court correctly. in regard to the identity of the accused persons pw3 and pw4 have identified the appellants herein as the persons who had entered the shop on 8th july 1999. appellants were awarded sentence of rigorous imprisonment for seven years for offence punishable under section 397 ipc. gujarat high court case information system body {scrollbar-face-color: #d4d0c8; scrollbar-highlight-color: #808080; scrollbar-shadow-color: #d4d0c8; scrollbar-arrow-color: #ffffff; scrollbar-dark-shadow-color: #ffffff} span.searchword { background-color:yellow; } function loadsearchhighlight() { var chkparamc = "txtsearch" if (chkparamc == "txtsearch") { searchhighlight(); document.searchhi.h.value = searchhi_string; if( location.hash.length > 1 ) location.hash = location.hash; } } print sca/14191/2011 5/5 orderinthe high court of gujarat at ahmedabadspecialcivil application no. 14191 of 2011=========================================================newindia assurance company ltd(insurer of hero hondo motor -petitioner(s)versussureshbhaikanjibhai mer & 1 - respondent(s)=========================================================appearance:mrhasmukh thakker forpetitioner(s) : 1,none for respondent(s) : 1 -2.=========================================================coram :honourable mr.justice bankim.n.mehtadate: 03/10/2011 oralorder 1. thepetitioner has filed this petition under articles 226 and 227 of theconstitution of india and challenged the impugned order passed by thepresiding officer, fast track court, gondal camp at dhoraji on27.4.2011 below application exh-15 filed under section 170 of themotor vehicles act, 1988 (for short “the act”) in macpno.329 of 2005.2. accordingto the respondent no.1 – original claimant, on 19.4.2005 whileriding as a pillion on motor cycle no.gj 3 ap 1432 belonging to theownership of respondent no.2, - owner and driver of the vehicle,sustained injuries in a vehicular accident. therefore, he filedclaim petition to obtain compensation. the respondent no.2driver/owner of the vehicle involved in the accident, appeared andfiled written statement contending that his vehicle did not dash withthe offending vehicle and the accident did not occur on account ofhis negligence. the petitioner was joined as party respondent asinsurer of vehicle motor cycle no.gj 3 ap 1432. the claimant gavehis oral evidence and also examined witnesses. the petitioner filedapplication exh-15 under section 170 of the act and made a prayer topermit to contest the claim on all or any of the grounds available tothe person against whom the claim has been made. the respondent no.1– original claimant filed reply to the said application. thetribunal, after hearing learned advocates for the parties, rejectedthe application. therefore, present petition has been filedchallenging the order.3. ihave heard learned advocate mr. thakkar for the petitioner at lengthand in great detail.4. learnedadvocate mr. thakkar submitted that the documentary evidence producedon the record of the tribunal indicates that there was collusionbetween the claimant and the person against whom the claim is madeand therefore, the petitioner – insurance company was requiredto be permitted to contest the claim on all the ground available tothe insurer, but the tribunal committed error in rejecting theapplication. therefore, impugned order is required to be set aside. 5. section170 of the act reads as under:“wherein the course of any inquiry, the claims tribunal is satisfied that-(a)there is collusion between the person making the claim and the personagainst whom the claim is made, or (b)the person against whom the claim is made has failed to contest theclaim, itmay, for reasons to be recorded in writing, direct that the insurerwho may be liable in respect of such claim, shall be impleaded as aparty to the proceeding and the insurer so impleaded shall thereuponhave, without prejudice to the provisions contained in sub-section(2) of section 149, the right to contest the claim on all or any ofthe grounds that are available to the person against whom (he claimhas been made.”6. inview of above provision, it is clear that the tribunal on beingsatisfied that there is collusion between the person making the claimand the person against whom claim is made or the person against whomthe claim is made, has failed to contest the claim the insurer shallbe impleaded as a party to the proceedings and such party shall havea right to contest the claim on all or any of the grounds availableto the person against whom the claim has been made. it appears fromthe averments made in application exh-15, copy of which is annexedwith the application, that the petitioner – insurance companypleaded that: “1. asappear from the records of this case. even though the insured andthe alleged driver of the subject vehicle are duly served withsummons, they have chosen not to appear and contest the claim of theclaimant, which appears to be due to collusion between them. havingthus failed to contest the claim by remaining absence, which willresult into great harm to the cause and defense of our insurancecompany.”7. inview of above referred to averments, it is clear that the petitionerhas claimed the benefit of section 170 of the act on the ground thatthe insured and owner, though served have failed to appear andcontest the claim and therefore, there is collusion between them andthe claimant. the impugned order indicates that the insured who wasdriver of the vehicle also, not only appeared before the tribunalthrough advocate, but also filed written statement. it also appearsfrom the impugned order that the insured/driver not only submittedwritten statement, but also effectively cross-examined the claimant. therefore, the tribunal was not satisfied that the person againstwhom the claim is made has failed to contest the claim and there iscollusion between the claimant and the person against whom claim wasmade. it appears from the averments made in application exh-15 thatthe petitioner made false averments with regard to non appearance ofinsured/ driver in the claim application. therefore, the tribunalwas justified in recording that there is no collusion as alleged bythe petitioner.8. inview of above, the tribunal was justified in passing the impugnedorder and no interference is warranted in the impugned order.9. inthe result, the petition fails and stands dismissed. (bankim.n.mehta,j.)shekhar*     top